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(a) Workmen's Compensation Act (VIII of 1923)---

--- S. 4(1)(c)(if), Explanation-Compensation, measure of-Petitioner suffering more than one injuries-Case, held, fell within Explanation to cl. (c)(ii) and compensation could be measured as in case of "total permanent disablement"-Assessment of compensation-To be made on basis of all attending circumstances-Trial and appellate Courts can notice such circumstances to judge ,loss in earning capacity No specific measurement for assessment being. given under cl. (c)(ii), com pensation to be assessed reasonably in discretion of Court.

According to the respondent, as result of the accident he has, suffered several. consequences: (i) fracture of bone, (ii) deformity of pelvic cavity and (iii) shortening of the right leg; therefore, his case would fall under the Explanation to clause (c)(ii), the appellant objected that the shortening of the leg cannot be noticed by the High Court as the same is not mentioned in the order of the Commissioner.

Held: The shortening of the leg is not an item specified in Schedule I. The respondent was made to walk in the Court Room and it was noticed that due to deformity there is shortening of one leg which has resulted in restricting the limb. It cannot be imagined that the Commissioner would not have noticed this demonstrable fact. There is no bar under the Act or the Rules made thereunder (which contain some special provisions with regard to evidence) for the trial or the appellate Court to notice such like circumstances so as to judge the loss in earning capacity. Under clause (c)(ii), there being no specific measurement for assessment, the same has to be made on the basis of all the attending circumstances. The compensation could in law/discretion be measured as in the case of "total permanent disablement" provided in the Fourth Schedule to the Act.

As there is no prescribed formula for assessment of loss of earning capacity vis-a-vis the nature of the injury not specified in the Schedule. accord ing to the scheme of the Act, the Commissioner has been allowed reasonable margin of variation in each case, in making the assessment. An absolutely unreasonable assessment which could amount to an impossibility might be hit down ion the ground of arbitrariness and the appellate Court might correct the error but so long as, there is a margin of reasonableness there would be no justification for interference at the appellate stage.

(b) Workmen's Compensation Act (VIII of 1923)-

-- S. 4(I)(c)(ii)-Clause (c)(ii) applies only when injury not specified in Sched. II-Injuries not specified in Schedule-May cause equal or more physical harm than those mentioned in Schedule, causing thereby equal or more loss in earning capacity.

Clause (c)(ii) of section 4(1), Workmen's Compensation Act, 1923, applies only when the injury is not specified in Schedule II. It is an admitted position that apart from the injuries specified therein there can be other individual injuries causing equal or more physical harm than the serious ones mentioned in the Schedule and thus causing equal or more loss in the earning capacity.

(c) Workmen's Compensation Act (VIII of 1923)-

-- S. 4(I)(c'(ii)-Commissioner, though,' has to determine loss of workman's "earning capacity" and not of his "physical capacity" yet both capacities being inter-linked "earning capacity" necessarily affected by "physical capacity"-Determination of one capacity needs notice of other capacity.

The determination by the Commissioner under the law should be loss of the workman's "earning capacity" and not of his "physical rapacity"; but it cannot be denied that both the capacities are inter-linked-the injury being a common factor. Whenever there is a lose of physical capacity there is most likely to he a loss of earning capacity; and it might be a very rare case in which desnite a loss of physical capacity there might be no loss in earning capacity. For determining one incapacity the other would have to be necessarily noticed.

Upper Doab Sugar Mills Ltd. v. Daulat Ram, A I 1936 All. 493; Agent East Indian Railway v. Murice Cecil Ryan A 1 R 193 Cal. 526 and The Divisional Superintendent, P. W. R., Quetta v. Mian Muhammad 1972 P L C 18 distinguished.

Khalil Ramdey for Appellant.

Muhammad Sadiq for Respondent.

Dates of hearing: 26th and 29th April 1974.

This first appeal under section 30 of the Workmen's Compensation Act filed by the Punjab Transport Corporation, calls in question the order passed by a Commissioner under the Workmen's Compensation Act whereby the respondent, a Mechanic in the Lahore Omni Bus Workshop, was awarded compensation of Rs. ',,880.00 on account of an accident admittedly arising out of and in the course of his employment with the appellant. On the pleadings of the parties following issues were framed :-

"(1) Whether the application is maintainable under the Workmen's Compensation Act under section 22

(2) Whether- there is any loss of earning capacity of the petitioner

(3) Whether the petitioner has been receiving half monthly payment during his convalescence

(4) Whether the petitioner is entitled to any compensation under the Act " '

2. Issue No. t was decided in favour of the respondent and on issue No. 2, it was held that on account of fractures and deformity in the pelvic region restricting limb movement the respondent had suffered loss of earning capacity to the extent of 60 %. This issue was decided -accordingly. Under issue No. 3 it was held that the total payment received by the respondent during his medical leave came to Rs. 196.33. Under the last issue it was held that after deducting Rs. 196.33 the respondent was entitled to compensation payment of Rs. 5,683.76.

3. I have gone through the evidence and have also heard the arguments addressed by the learned counsel, on the two contentions raised by him, (1) that section 22 of the Workmen's Compensation Act was a bar to the filing of a claim by the respondent before the Commissioner-because he not-having made a specific claim directly from the appellant and no "question had arisen between the parties in connection therewith", therefore, the application for compensation was incompetent; and (ii) that the quantum of compensation is not based on any law or rule, and further that the assessment made by the Commissioner is arbitrary.

4. On the first question, learned counsel has also relied on the provisions contained in section 10 which provides that no claim for compensation shall be entertained unless notice of accident has been given in the specified manner. When it was pointed out to the learned counsel that the respondent made an application for compensation on 16-2-1971 and till 5-3-1971 he did not receive any response with regard to the compensation demanded in the said application, the same could be treated as sufficient notice/knowledge under sub-clause (G) of subsection (1) of section 10 and further that the Commissioner bad discretion, notwithstanding the absence of notice to grant compensation, this point was not pressed any further. Learned counsel, however, laid stress on the point that under section 22 it was incumbent upon the respondent to prove that he having made a demand from the appellant and the same having been denied, a "question had arisen" between the parties in connection with the compensation. Unless a question had arisen, it was contended, the application could not be submitted before the Commissioner. I do not agree with the reasoning of the learned counsel. As pointed: out above, in the application dated 16-2-1971 addressed to the Regional Manager of the appellant, the respondent had specifically demanded that after completing his accident report he may be allowed compensation. Thereafter he waited for about 18 days. .Neither any compensation was paid to him during this period nor anybody cared to attend' to this demand, while the other demands made in the same application had been considered and decided on or about the date when the application was made. In these circumstances the respondent was justified to, assume that his request for compensation had been ignored. Refused, therefore, "a question had arisen in connection with the compensa tion between the parties" and, thus it was within his right to approach the Commissioner 'through a formal application. The decision of the Commissioner on issue No. 1, therefore, in my view is unexceptionable and the same is upheld.

. 5. On the question of assessment of loss of earning capacity I agree with the learned counsel that the case of the appellant fell within the ambit of clause (c) (ii) of subsection (1) of section 4 of the Act which reads as follows :-

"4.-(1) Subject to the provisions of this Act, the amount of compensa tion shall be as follows, namely:-

C. Where ' permanent partial disablement. results from the injury .=

(ii) in case of an injury not specified in Schedule I, such percentage of the compensation payable in the case -of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury:

Explanation.-Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not go in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from, the injuries."

6. it is not disputed that if the loss in earning capacity is assessed at 60% then the compensation awarded would be perfectly legal. But the precise-argument of the learned counsel is that the learned Commissioner had not acted on any accepted formula for making the assessment of the earning capacity at 60 %. According to him if there would have been total loss of a leg above the knee, only then there would have been a loss in earning capacity to the extent of 60Y. (I1 (c)(ii) only "proportionate" loss in earning capacity qua "permanent total disablement dealt in Schedule IV; was to be adjudged, therefore, in the present case in absence of loss of a leg and there being only deformity of the pelvic bone, the assessment should have been less than 60%. It may be mentioned, here that according to the respondent, as result of the accident he has suffered several consequences; (i) fracture of bon se (ii) deformity of pelvic cavity and (iii) shortening of the right leg; therefore. his case would fall under the Explanation to clause (c) (ii). Learned counsel .for the appellant objected that the shortening of the leg cannot, now be noticed by this Court as the same is not mentioned in the order of the Commissioner.' The shortening of the leg is not an item specified in Schedule L The respondent was made to walk in the Court Room and it was noticed that due to deformity there is shortening of one leg which has resulted in restricting the limb. It cannot be imagined that the Commissioner would not have noticed, this demonstrable fact. There is no bar under the Act or the rules made thereunder (which contain some special provisions with regard to evidence I for the trial or the appellate Court to' notice such like circumstances so as to Judge the loss in earning capacity. Under clause (c) (ii), there being no specific measurement for assessment, the same has to be made on the basis of all the attending circumstances. 1, therefore, hold that the case fell within the explanation to clause:(c) (ii) which provides for more injuries than one. That being so, the compensation could in law/discretion be measured as in the case,' of "total permanent disablement" provid-d in the Fourth Schedule to the Act. The Commissioner, however, in his judgment, which, appears to be reasonable and sound, fixed the loss of earning capacity at 60% which is unexceptionable. '

7. Even if the-explanation is kept out of consideration and the injuries -suffered by the respondent treated as single injury under clause (c) (ii ), I do not agree with the learned counsel that the learned Commissioner was, in any 'way, debarred, in the .circumstances of the case, from giving'a finding that the appellant had suffered loss of earning capacity to the extent of 60y. Clause (c)(ii), applies only when the injury is not specified in Schedule II. It is .an admitted position that apart from the injuries specified therein there can be other individual injuries causing equal or more physical harm than the serious ones mentioned in the Schedule and thus causing equal or more loss in the earning capacity. In the present case, I would not be able to make .any difference between total loss of leg and the deformity of the pelvic cavity/ bone resulting in disjointed, restricted and awkward movement and incapacitating the sufferer to a considerable extent not only in' walking and running postures but also in other postures including that of standing, sitting or-squatting. As there is no prescribed formula for assessment of loss of earning capacity vis-a-vis the nature of the injury not specified in the Schedule, according to the scheme of the Act, the Commissioner has been allowed reasonable margin of variation in each case, in making the assessment do agree that an absolutely unreasonable assessment which could amount to pan impossibility might be hit down on the ground of arbitrariness and the appellate Court might correct the error but so long as there is a margin o reasonableness there would be no justification for interference at the appellate stage. In this case in my view, the assessment of the earning capacity by the Commissioner is not only reasonable but also highly proper.

8. Before concluding I deem it necessary to notice that learned counsel also tried to support his arguments by citing three cases but they are distinguishable and thus of no help to him. They are Upper Doab Sugar Mills, Ltd. v. Daulat Ram A I R 1936 All. 493, Agent, East Indian Railway v. Murice Cecil Ryan A I R 1937 Cal. 526 and The Divisional Superintendent, P. W. R., Quetta v. Mian Muhammad 1972 P L C 18. It has not been contested that the case of the respondent falls within sub clause (ii) of clause (c) of section 4(1): The objection is only with regard to the assessment made by the learned Commissioner, about the loss of earning capacity at a particular percentage namely sixty'. I do agree with the learned counsel that the determination by the Commissioner under the law should be loss of the workman's "Earning Capacity" and not of his "Physical Capa city"; but it cannot be denied that both the capacities are inter-linked-the injury being a common factor. Whenever there is a loss of Physical capacity there is most likely, to be a loss of earning capacity; and it might be a very rare case in which despite a loss of physical capacity there might be no loss in earning capacity. For determining , one incapacity the other would have to be necessarily noticed. In this case the respondent had categorically stated that even when he was examined in February, 1972, he would walk only slowly, and further that after a few paces he felt pain. He also stated that he needed the doctor's attention even then. Loss in physical capacity in his case undoubtedly resulted in the logs in earning capacity. The two cases,. therefore, cited by the learned counsel from Allahabad and Calcutta, have not much relevance it the present case. The third case cited by the learned counsel has also no relevance. I have already noticed that the statute law has left it to the judgment of the Commissioner to "determine percentage of loss of earning capacity under clause (c) (ii) of section 4(l). There is case-law, in Indian Jurisdiction indicating that mostly the Commissioners make a "guess work" while determining this percentage, because of absence of any statutory specification. I have already made enough comment that unless the assessment is arbitrary and/or impossible the same would not be set aside in appeal merely on a difference of opinion. Even in England where the law on the subject appears to be well-settled, in such like situations, under that system the trial Judges develop practical notions/conventions with regard to the particular types of injuries and the decisions being based on individual' experience, naturally vary from cane to case. There is nothing wrong in the context of Pakistan Statute Law, for the Commissioners functioning under the Workmen's Compensation Act and rules made thereunder, to act on similar aids of reasonableness including experience.

9. After having carefully considered all the arguments raised by the: learned counsel. I find no merit in this appeal and the same is dismissed, but there shall be no order as to costs.

Appeal dismissed.

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